Al-Qaeda operative Ahmed Ghailani was acquitted by a New York jury on over 280 charges and convicted on just one for his role in the bombings of two U.S. embassies in Africa in 1998. During the trial, U.S. District Court Judge Lewis Kaplan ruled significant evidence inadmissible because of Ghailani’s prior subjection to enhanced interrogation and the enhanced interrogation used on another government witness. In a military trial, this evidence would likely have been admissible and resulted in conviction on the other counts.
But, based on the evidence admitted in court, the jury was right. Some will conclude from this that the system worked, but I conclude that, in opting for a civilian trial, the president put political considerations ahead of his first obligation, to protect the American people.
Ghailani should never have been tried in civilian court. He is an al-Qaeda operative who was close to Osama bin Laden. He was captured on the battlefield in Pakistan in 2004, held for interrogation by the military and our intelligence operatives, and ultimately transferred to Guantanamo Bay. He is an enemy combatant.
I was the U.S. attorney for the district of Massachusetts when shoe-bomber Richard Reid’s flight from France was diverted to Logan International Airport. Reid, like Ghailani, was an al-Qaeda operative: Both have sworn their allegiance to Osama bin Laden, both are enemies of our country, and both had a mission to kill innocents, including American citizens.
So why a civilian trial for Reid but not for Ghailani? First, Reid was arrested just weeks after 9/11, while Ghailani was captured in 2004. Second, much of the evidence against Reid was developed through traditional law-enforcement efforts. Third, at the time Reid was arrested, we had not fully come to appreciate the benefits to our national security afforded by detention of individuals as illegal enemy combatants or their prosecution in military tribunals.
Had Reid appeared on our soil in December 2002, I am confident that a much different discussion would have taken place with Attorney General Ashcroft to determine whether prosecuting Richard Reid in an Article III Court was in the best interest of our national security. Based on what we knew in 2002 and what we know today, people like Reid should be in military custody, held as illegal enemy combatants.
Ghailani and the other al-Qaeda terrorists who are captured by our military and held in military facilities like Guantanamo should not be given the constitutional protections afforded to common criminals. Military commissions have been upheld by the Supreme Court as constitutional. A conscious decision to surrender enemy combatants who could be charged with war crimes to civilian authorities is either a tacit admission by the president that he believes the U.S. military is incapable of conducting a fair trial and rendering a just verdict, or a belief that a civilian trial improves our national image. Not exactly the message our men and women in uniform — particularly those who have served or are currently serving in combat zones — want to hear from their commander-in-chief.
The president’s supporters will argue that the system worked. Ghailani will get at minimum 20 years imprisonment and potentially a life sentence. But the rest of us who see al-Qaeda as a determined enemy intent on the destruction of our lives and our liberties are left with the uncomfortable conclusion that this administration has returned to the pre-9/11 mentality that we are not at war and that al-Qaeda is a criminal problem. Unfortunately, our enemy sees it differently.
Reid and Ghailani are not ordinary criminals and, as such, civilian courts are limited in their ability to satisfy our national interest and security. While some may think public trials help in the court of public opinion, they don’t. In fact, civilian trials will likely further embolden our enemies and limit our ability to exploit the intelligence value of these enemy combatants. We must never sacrifice our national security for public relations.